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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Parkyn, R (on the application of) v Restormel Borough Council [2000] EWHC Admin 344 (19 May 2000)
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Cite as: [2000] EWHC Admin 344
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R V Restormel Borough Council ex parte Parkyn v. R V Restormel Borough council ex parte Corbett [2000] EWHC Admin 344 (19th May, 2000)
Case no: CO/1406/2000 & CO/1425/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday 13th September 2000
MR GEORGE BARTLETT QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
-------------------
Regina
V
Restormel Borough Council ex parte Parkyn
-and-
Regina
V
Restormel Borough council ex parte Corbett
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
MR C KATKOWSKI QC and MR J MAURICI (Instructed by Sharpe
Pritchard, London, WC1V 6HG) appeared on behalf of the Applicant Parkyn
MR J LITTON (Instructed by Russel Jones & Walker Solicitors London,
WC1X 8NH) appeared on behalf of the Applicant Corbett
MR G ROOTS QC and MR R TAYLOR (Instructed by Stephens & Scown
St Austell, Cornwall, PL25 5DR) appeared on behalf of Land and Property
Limited, an interested party
Judgment
(As Approval by the Court)
Crown Copyright
MR GEORGE BARTLETT QC:
1. The claimants in this case, both councillors of Restormel Borough Council, seek by judicial review to challenge four decisions of the council as local planning authority. Councillor Parkyn does so on behalf of the council itself, Councillor Corbett in a private capacity. Three of the decisions are grants of planning permission, and the fourth relates to an agreement under section 106 of the Town and Country Planning Act 1990, on parts of the Victoria Business Park at Roche in Cornwall. The purpose of the challenge is to relieve the council of the obligation to pay compensation to the landowners in consequence of an order made by the Secretary of the State for the Environment Transport and the Regions modifying one of the permissions. Permission to apply for judicial review was granted to Councillor Parkyn by Sullivan J on 19 May 2000 and to Councillor Corbett by Forbes J on 30 June 2000 after Collins J had refused permission on paper.
Victoria Business Park
2. Victoria Business Park comprises about 20 hectares of land lying in otherwise generally open country on the south side of the A30 trunk road 3 kilometres west of the Bodmin bypass and 7 kilometres to the east of the Indian Queens bypass on a single carriageway section of the road. The village of Roche lies about 1.5 kilometres to the south. The nearest town are Bodmin, St Austell, Newquay and Truro. The Business Park has been developed on land formerly known as Penstraze Farm, which was bought by a company called ML Real Estate Ltd in, I think, the 1970s. It has been developed in a piecemeal manner from then onwards. Initially a number of planning permissions were granted for the erection of factory/workshop units. Then in October 1986 permissions were granted for retail (non-food bulky items) and warehouse development on part of the site. It appears that the retail element (50,000 sq ft) was included to give a high value use to make the site more attractive to developers. Overall there have been numerous applications and permissions covering B1 (business), B2 (general industrial) and B8 (storage/distribution) as well as retail and other uses. Four of these permissions (including the three which are the subject of these proceedings) are of particular relevance.
The planning permissions
3. On 12 November 1990 permission ("the 1990 permission") was granted to ML Real Estates Ltd for the "Erection of non-food retail units with associated car parking, etc.". The amount of retail floor space was 195,000 square feet. The site was a roughly square area which formed the central area of the business park and was bounded on three of its sides by what the plan showed as the internal estate road. The permission was a full permission with the standard 5-year time limit on commencement. Among the conditions imposed was the following:
"11. The total floorspace to be used for non food retail shall not exceed 125,000 sq ft comprising a maximum number of five units which shall not be sub-divided but shall be occupied by a single non food retail operator."
4. An agreement made under section 52 of the Town and Country Planning Act 1971 between the council, ML Real Estate Ltd as owners, the mortgagees, and the contracting purchaser of the land, contained a similar provision. The application had been referred to the Secretary of State for the Environment as a departure from the development plan, but it was not called in despite the fact that there was an objection to it by Cornwall County Council.
5. On 5 January 1994 a permission was granted on an application made in 1993 for "Extension of time limit of Decision ... dated 12/11/90 for erection of non-food retail units with associated car parking etc." The applicants were Ernst & Young, receivers for ML Real Estate Ltd, which was then in receivership. Although the permission (known, in order to distinguish it from a later permission, as "the 1993 permission") was described as one that extended the time limit of the 1990 permission, it did in fact differ from it in respects other than this. The land to which it related excluded the north-east corner of the 1990 site, and, whereas the 1990 permission had been a full permission, the 1993 permission included the standard outline condition, requiring the approval of details relating to the siting, design and external appearance of the proposed buildings. Condition 11 of the 1990 permission was included as condition 14. The council did not notify the Secretary of State of the application.
6. On 8 August 1994 planning permission ("the 1994 planning permission") was granted to Ernst & Young, as receivers for ML Real Estate Ltd, for "Erection of buildings for uses within classes B1, B2, and B8 of the Town and Country Planning (Use Classes) Order 1987 and for non-food retail use together with associated car parking, services and roads." It related not only to the 1993 permission land but to substantial other areas of the business park as well, including the area fronting the A30. The intention, it appears, was to embrace all the undeveloped areas of the business park in a single consolidating permission. It was an outline permission, and under condition 3 the reserved matters had to be submitted to the council within 3 years, that is, before 8 August 1997. The conditions were the same as in the 1993 permission, except that there were 18 of them as conditions 1 to 4 were in error duplicated as conditions 5 to 8, and there was a small but highly significant alteration to the last condition (condition 18, formerly condition 14 of the 1993 permission). It provided:
"18. The total floor space to be used for non-food retail shall not exceed 125,000 square feet in area comprising a maximum number of five units four of which shall not be subdivided and shall each be occupied by a single non-food retailer."
As with the 1993 permission, the council had not notified the Secretary of State of the 1994 application.
7. On 13 May 1997 planning permission ("the 1997 permission") was granted for "Extension of time of [the permission] dated 8.8.94 for erection of buildings for use within classes B1, B2 and B8 of Town and Country Planning (Use Classes) Order 1978 [sc 1987] and for non-food retail use together with associated car parking, services and roads." It said: "This is a further grant of permission for the development granted by the original permission ... dated 8/8/94." The conditions were identical to those in the 1994 permission except that the error in duplicating conditions 1 to 4 was not repeated. The site, however, was not co-terminous with that of the 1994 permission. The application for the 1997 permission was made by Land and Property Ltd through its agent Alan Leather Associates. Since the 1994 permission Land and Property Ltd had become the owners of Victoria Business Park, and its managing director was (and is) Michael Thomas Lott, who had been the principal shareholder in ML Real Estate Ltd. Again the council had not notified the Secretary of State of the application.
8. Shortly after the submission of the 1997 application, David Stewart Associates, acting for Land and Property Ltd, asked the council to agree to modify the section 52 agreement so as to bring it into line with the revised wording contained in the final condition, condition 18 in the 1994 permission. The council accepted that this was appropriate, and a new agreement, under section 106 of the 1990 Act, was made incorporating the revised wording.
Reserved matters applications
9. In July 1997 a reserved matters application pursuant to the 1997 permission was made by Castle Court Retail Ltd and Land and Property Ltd. It referred to what was proposed as "Victoria Shopping Village - the South West Outlet Centre". The details submitted showed one large unit subdivided into 60 smaller units. The application was greeted with consternation by members of the council, by Cornwall County Council and by others, who thought that such a development would do severe damage to the shopping centres of nearby towns. It was drawn to the attention of the Government Office for the South West. The council did not determine the application, and the applicants appealed to the Secretary of State.
10. A second reserved matters application was made in December 1997 for a large unit of 105,000 square feet and four smaller units of 5,000 square feet. It was not expressed to be for a shopping village and it showed no sub-division. It was called in by the Secretary of State.
The modification order
11. On 29 January 1998 the Head of Development in the Government Office for the South West wrote to the council's Chief Executive with reference to discussions that the office had had with the council about the applications for approval of reserved matters. He said that it was the Department's opinion that both the 1993 and the 1997 applications should have been referred to the Secretary of State as departures from the development plan pursuant to the Town and Country Planning (Development Plan and Consultation) Directions 1992. He referred to certain provisions of the development plan and PPG6 (the Planning Policy Guidance Note on town centres and retail development) and to section 54A of the 1990 Act. He said that the outline planning permission in respect of the non-food retail use would appear to be contrary to PPG6 and might have an adverse effect on the vitality and viability of nearby town centres. The decision to grant planning permission could be said to be "grossly wrong", and the Secretary of State was therefore considering whether it would be expedient to make modification and revocation orders under section 97(1) of the Act. He asked whether the council would be prepared to make the orders themselves.
12. The words "grossly wrong" reflected the wording of the Minister of Planning in a Parliamentary answer on 20 December 1989, when he had said that the view of the Secretary of State was that he should use his power to revoke or modify a planning permission only if the original was judged to be grossly wrong.
13. A letter in similar terms to the one I have just referred to was sent to the council on 10 March 1998 in relation to the 1994 permission. It was not until 25 June 1998 that the Chief Executive gave the council's substantive reply. She said, in summary, that the 1993, 1994 and 1997 permissions were seen as continuations of the permission granted in 1990 and, whilst the council accepted that in each case this could be said to be a failure to conform, the planning history of the business park and the 1990 permission were regarded as material considerations that should prevail. Accordingly, she said, any failure to conform, if wrong, was not grossly wrong. It would only be grossly wrong if it was established that retail development would have an unacceptable impact on other centres; but the development proposed would not have that effect. Other material considerations could be shown to weigh the balance in favour of making no modification; but the council was not in a position to consider whether they should make such an order without knowing the views of the Secretary of State on the merits.
14. In the light of this letter the Secretary of State directed that a local public inquiry should be held to consider all aspects of the factors material to his decision on whether he should make an order or orders revoking and/or modifying the permissions. The inquiry was held between 11 and 27 May 1999 by an inspector, who sat with a legal assessor. In her report the inspector expressed her overall conclusions in this way:
"3.338 I conclude that the grant of planning permissions 93/1385, 94/579 and 97/326 were grossly wrong for the following reasons:
i. in all 3 cases the development was in conflict with the relevant policies and proposals in the development plan and with national planning policy applicable at the time the permissions were granted;
ii. there is no evidence to show that there were material considerations which were taken into account at the time the permissions were granted which would outweigh the conflict with the development plan policies;
iii. the applications were not referred to the SoS as a departure.
3.339 The implementation of any of the permissions would cause damage to the wider public interest for the following reasons:
i. the development of 5 retail warehouses or a `non-food shopping village' of many units would cause harm to the vitality and viability of the centres of Truro, St Austell, Newquay and Bodmin, in particular, and undermine the efforts of these and other town centres in Cornwall to attract investment;
ii. the development of 5 retail warehouses or a `non-food shopping village' of many units would significantly worsen traffic congestion at the A30/B3274 junction to the detriment of the free flow of traffic on the trunk road and safety on the A30 and B3274;
iii. the development of 11,613 sq.m of out-of-centre retail floorspace would undermine the aims of development plan and national planning policies to focus development on town centres.
3.340 I conclude on the issues raised that it is expedient for the SoS to:
i. Revoke planning permission 93/1385.
ii. Modify planning permission 94/579 by removing non-food retail use.
ii. Modify planning permission 97/326 by removing non-food retail use."
15. The Inspector also recommended that the two appeals in respect of the reserved matters applications should be dismissed. In a separate report she recommended that the council should be ordered to pay part of the costs of Cornwall County Council and the Highway Agency, who had appeared at the inquiry in support of the proposed orders. The Secretary of State accepted the inspector's recommendations except that he decided not to modify or revoke the 1993 and 1994 permissions since these had both expired by the time of his decision. An order modifying the 1997 permission was made on 8 March 2000. Costs were awarded against the council.
The claimants
16. Anthony Isaac Parkyn has been a Councillor since 1976 and is currently deputy leader and chairman of the council's Planning and Building Control Committee. He was authorised by resolution of the council on 10 April 2000 to act as the applicant in judicial review proceedings, and the council is paying his costs. Such a course of action, which overcomes the problem that the council cannot be both claimant and defendant, was commended as "a convenient and appropriate course to adopt" in R v Bassetlaw District Council, ex p Oxby [1998] PLCR 283 by Hobhouse LJ (at 293A), who added, "...provided, of course, that it is not abused." There is a witness statement from Councillor Parkyn, to which I will refer.
17. The second applicant, William Harvey John Corbett, has been a Councillor since May 1999. He is an elector and council tax payer of the Borough of Restormel and he says that he makes his application in this capacity. In his witness statement he says that he does so because of his concern that a large payment of compensation would have a significant effect on the people of Restormel; and because, as an individual tax payer, he does not have the particular difficulty of the council, who are seeking judicial review after twice having resolved not to do so and having argued that the decision to grant planning permission was not so grossly wrong as to warrant revocation.
The grounds advanced
18. On behalf of the first claimant, Mr Christopher Katkowski QC submits that each of the decisions of the council that are in issue were unlawful for each of three reasons:
(i) The council failed to apply section 54A of the Town and Country Planning Act 1990, and left out of account material considerations;
(ii) The council failed to refer the application to the Secretary of State in accordance with paragraph 2(1) of the Town and Country Planning (Development Plans and Consultation) Directions 1992; and
(iii) Condition 18 in the 1994 permission and condition 14 in the 1997 permission were imposed without the council having regard to material considerations.
On behalf of Councillor Corbett, Mr John Litton adopts these submissions.
19. The case for Land and Property Ltd ("L & P"), who appear as an interested party, is that, on the evidence none of these grounds are made out; that the council are estopped from now contending that their decisions are unlawful and that Councillor Corbett's position is no different from the council's; and that the delay in applying for relief requires in all the circumstances that relief should be refused. I will consider Mr Katkowski's three grounds.
Ground 1: failure to have regard to material considerations
20. Under section 70(2) of the 1990 Act, in dealing with an application for planning permission, the local planning authority is required to "have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." Section 54A provides : "Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise." Mr Katkowski submits that each of the decisions to grant planning permission was unlawful because in no instance did the planning committee have regard to the provisions of local and national planning policy or consider whether the development was contrary to the provisions of the development plan and, if so, whether there were nonetheless material considerations that made it appropriate to grant planning permission.
21. Mr Katkowski placed great emphasis on the conclusions of the inspector following the inquiry in 1999. She thought that each application was plainly contrary to policy; that the officers' reports to committee had failed to draw attention to the relevant policies and other material considerations; and that each decision was "grossly wrong." While these conclusions are relevant to ground 1, they do not establish it. What the committee did or did not take into account is a matter that requires to be made out on better evidence than this. Councillor Parkyn in his witness statement made the standard confirmation about the truth of the facts and matters deposed to in Form 86A; and that included the following:
"86. The Committee reports in relation to these three permissions are extremely brief and gave no information at all about the relationship between the proposed development and national or development plan policies nor as to the implications of section 54A of the 1990 Act.
87. Further there is no record that the Committee gave consideration to what material considerations existed which might indicate a decision otherwise than in accordance with the development plan, as required by section 54A of the 1990 Act.
88. It is submitted that these are the clearest breaches of section 54A and section 70 of the 1990 Act.
89. These considerations which were not put before the Committee were plainly and highly material. Indeed they were essential to the making of a lawful determination of the applications."
22. Councillor Parkyn is recorded by the minutes as having been present at each of the meetings. It is perhaps surprising, if he is able to remember at this distance in time what matters were considered by the committee and what matters were not considered by the committee, that he does not himself say what those matters were in a more specific way than this. I attach no greater importance to his evidence on this issue than as the vehicle for the production of documents to which regard is to be had.
23. The reports to committee were undoubtedly inadequate. That on the 1993 application simply described the development as "Extension of time limit" on the 1990 permission; identified "Employment" under "Constraints"; noted that replies were awaited from the standard consultees; and set out the proposed conditions. The report on the 1994 application followed a similar form, except that the suggested conditions were not listed (a matter I refer to later in connection with ground (3)), and there was a short commentary explaining the purpose of the application as the rationalisation of earlier permissions and saying: "I will report further and display a plan at your meeting showing the land which has been developed, the current application site and valid approvals."
24. The report on the 1997 application, again in similar form, gave a short site history; drew attention to condition 18 in the 1994 permission; noted that concerns were expressed on parking by one of the businesses on the business park and on the lack of industrial land by the council's Economic Development Officer; noted also that the County Surveyor recommended refusal "because since this site was granted planning permission in 1994 recent Government guidance advises against the creation of out-of town retail parks"; and said that the officer would display a plan and report further. The minutes for this meeting, and for those at which the 1993 and 1994 permissions were granted, do not appear to have gone beyond recording the decisions that were taken.
25. The inadequacies of the reports to committee and the reliance on oral reports were the subject of adverse comment in a report prepared for the council in 1998 by Mr Alan Smith, a former Chief Executive, who was asked to examine the council's procedures and practices for dealing with planning applications. They do not make it easy to identify what matters were and were not taken into account, but the minimalist nature of the written reports certainly suggests that the full policy implications of the proposals may not have been taken into account by the committee. Confirmation of this, however, has to be sought elsewhere. It is, I believe, to be found in the letter of the Chief Executive of 25 June 1998 to the Government Office for the South West, to which I have referred earlier. In this she said:
"Conformity. It appears that after 1990 the Council and the Officers assumed that the principle of a mixed business and retail park development (food and non-food) had been established. They did not therefore attempt to reconsider the merits of the retail development at the time of the applications in 1994 and 1997. In these circumstances, the first substantial question appears to be whether the failure to conform can be regarded as "grossly wrong."
26. At a number of places in the reports of the inspector and the assessor it appears that the council were seeking to explain on this basis what they had done. The reality is that in considering the 1994 and 1997 applications the committee treated them as applications to renew earlier permissions and did not address the provisions of the development plan or other considerations bearing on the planning merits. Inferentially the same goes for the 1993 permission. I am satisfied, therefore, on the totality of the material before me that none of the decisions were taken in the light of a consideration of the applicable local and national planning policies. Ground 1 is made out.
Ground 2: failure to refer the applications to the Secretary of State
27. Under paragraph 2(1) of the Town and Country Planning (Development Plans and Consultation) Directions 1992, "a local planning authority shall not grant planning permission on a departure application unless they have complied with any requirement imposed in relation to that application by paragraph 3 of these directions." Paragraph 1(2) identifies a "departure application" to mean an application for planning permission for development which does not accord with the provision of the development plan in force for the area. Paragraph 3 provides:
"Where a departure application which a local planning authority do not propose to refuse is for -
(a) development which consists of or includes the provision of -
... (ii) more than 10,000 square metres of retail floor space...
the authority shall send to the Secretary of State -
(i) a copy of the application...
(ii) a copy of the requisite notice
(iii) a copy of any representations made to the authority in respect of the application;
(iv) a statement of the issues involved in the decision and of any views expressed on the application by a government department or another local planning authority."
Notification of an application under the Directions enables the Secretary of State to consider whether he should exercise his power under Section 77 of the 1990 Act and direct that the application be referred to him for decision.
28. The 1992 Directions were made under the Town and Country Planning General Development Order 1988 (now repealed). The relevant statutory provision is section 74(1)(b) of the 1990 Act which provides:
"74(1) Provision may be made by a development order for regulating the manner in which applications for planning permission to develop land are to be dealt with by local planning authorities, and in particular -
.... (b) for authorising the local planning authority, in such cases and subject to such conditions as may be prescribed by the order, or directions given by the Secretary of State under it, to grant planning permission for development which does not accord with the provisions of the development plan."
The predecessor provision (section 31 of the Town and Country Planning Act 1971) was in the same terms.
29. Since each of the applications included the provision of 125,000 square feet (11,613 square metres) of retail floor space the prohibition in paragraph 2 of the 1992 Directions applied. Mr Roots accepts that there was a breach of the requirement, but he argues that the breach was procedural only and did not render the decision to grant planning permission unlawful. He relies on Co-operative Retail Services Ltd v Taff-Ely Borough Council (1979) 39 P & CR 223. In conclusions that were expressly stated to be obiter (see pp 240, 244, 251) the Court of Appeal expressed the view that a failure to comply with the predecessor directions of the 1992 Directions which were made pursuant to the 1973 General Development Order and section 31 of the 1971 Act did not render a planning permission unlawful. At 245-6 Ormrod LJ said:
"[Counsel's] argument depends on section 31(1(b) of the Town and Country Planning Act 1971, which is a difficult section to construe. On the fact of it, it appears to restrict the power of any local planning authority to grant planning permission for development that does not accord with the development plan without previously referring the application to the Secretary of State in accordance with the directions made by him under the section. The directions themselves are expressed in language that also appears to restrict the powers of the local planning authority. Mr Woolf, however, drew attention to the oddly composite character of section 31(1), in which paragraph (a) is unquestionably mandatory in character - that is, it clearly limits the power of the local authority - whereas paragraphs (c), (d) and (e) are equally clearly administrative in character and could not be regarded as restricting its powers but [are] merely directing how it is required to proceed. This leaves paragraph (b). This certainly appears to restrict the power of the local planning authority, but, in practice, if read in this way, would go much too far in limiting its powers. In the result, Mr Woolf has persuaded me that this paragraph should not be construed as depriving the county council (in this case) of power to grant planning permission without referring the application to the Secretary of State."
30. Browne LJ's reasoning at 254-255 was similar, and he said (at 255):
"Mr Woolf [counsel for the Secretary of State] pointed out to us the strong public policy objections to treating section 31(1)(b) of the Act of 1971, article 12 of the Order of 1973 and the Direction of 1975 as going to jurisdiction. If they did, the holder of an apparently valid planning permission to be safe would have to satisfy himself that all the provisions of the Direction had been complied with between the planning authority and the Secretary of State, which would be very difficult, if not impossible. Having regard to the opening words of section 31(1), to the consideration that planning authorities do not need `authorising' to depart from the development plan and to the public policy objection, I have come to the conclusion that section 31(1)(b) is procedural only."
31. Mr Katkowski points out that the 1975 Direction differed from the 1992 Directions in what he says are two significant respects. Firstly, the procedures applied where "in the opinion of the district planning authority" there would be a conflict with the provisions of the development plan (in contrast to the objective nature of the current criteria); and, secondly, there was no prohibition on the grant of permission, but simply a requirement to send certain material to the Secretary of State. Mr Roots submits that the reasoning of Ormrod LJ and Browne LJ was based, not on the wording of the Direction, but on the terms of section 31, which, so far as material, was the same as that now to be found in section 74 of the 1990 Act. Accordingly, the reasoning applies equally in the circumstances of the present case.
32. Mr Roots refers also to R v Lambeth London Borough Council, ex p Sharp [1987] JPL 440, which concerned the Town and Country Planning General Regulations 1976, which regulated the procedures under which local planning authorities could themselves obtain planning permission. Woolf LJ, in a passage which was consistent with the judgment of Stephen Brown LJ and with which Donaldson MR agreed, is reported as follows (at 443):
"When the provisions of such regulations were contravened, almost invariably it was unhelpful to consider what were the consequences of non-compliance with the regulations by classifying them as containing mandatory or directory provisions, or as containing a condition precedent, or as containing a provision which rendered a decision void or voidable, or by considering whether they contain a provision which goes to jurisdiction. What had to be considered was: what was the particular provision designed to achieve? If, as here, it was designed to give the public an opportunity to make objections to what was proposed, then the court was bound to attach considerable importance to any failure to comply with the requirements.
However, the breach of the requirements cannot be considered alone. It has to be considered in the context of the particular circumstances in relation to which the matter comes before the court."
33. The approach in the Lambeth case was followed by Schiemann J in R v Doncaster Metropolitan Borough Council, ex p British Railways Board [1987] JPL 444 in relation to the departure provisions contained in the Town and Country Planning (Development Plans) (England) Direction 1981. The judge held that the development manifestly conflicted with the allocation of land in the development plan. Taff-Ely was not referred to in either the Lambeth or the Doncaster cases.
34. Mr Roots submits that if Taff-Ely were to be followed, the failure to notify the Secretary of State does not invalidate the 1997 planning permission. If Lambeth and Doncaster are to be followed, the questions are, firstly, what the requirement was designed to achieve; and, secondly, whether the failure to comply with the direction justifies quashing the planning permission in all the circumstances of the case. The purpose of the requirement was, he says, to enable the Secretary of State to call in the application if he wished to do so; and the failure to comply did not justify quashing, for the same reasons as applied to the issue of discretion, which he dealt with later.
35. Mr Katkowski's primary submission is that the 1992 Directions are in terms that prohibit the grant of planning permission until the requirements of paragraph 3 have been complied with, and therefore the purposive approach of Lambeth in relation to the different provisions of the 1975 Direction does not apply. I agree with this submission. The wording of paragraph 2(1) is clear, and the prohibition is explicit. I can see nothing in the provisions of section 74 to exclude the making of a direction that is prohibitory in effect. The judgments in Taff-Ely were to the effect that section 31(1)(b) did not itself amount to a mandatory provision, not that directions made under it could not, however they were worded, be mandatory (or prohibitory) in effect. Thus neither that case nor Lambeth or Doncaster operate so as to deprive para 2(1) of the 1992 Directions of their explicit effect. And as far as the public policy objections, referred to by Browne LJ in Taff-Ely, are concerned, the right conclusion, in my judgment, is that these would have been taken into account by the Secretary of State in altering the wording of the 1975 and 1981 Directions to that in the 1992 Directions. He evidently considered then, in contrast to the views expressed on his behalf by counsel in 1979 in the Taff-Ely case, that such considerations were outweighed by other policy considerations and he decided to include in the Directions an express prohibition.
Ground 3: Condition 14 (Condition 18 of the 1994 permission)
36. The way in which condition 14 in the 1993 permission came to be amended has not so far been established. In its 1990 and 1993 version the condition provided that there should be a maximum of 5 non-food retail units and that they should not be subdivided. In its 1994 and 1997 version it provided that there should be a maximum of 5 units, four of which should not be subdivided. In its amended form, the condition is somewhat obscure, but there appears to be agreement, from which I do not dissent, that it means that a maximum of 5 units may be constructed and that, provided there are 4 units which are not subdivided, the fifth unit may be subdivided.
37. It is to be noted that the officer's report on the 1994 application, in contrast to the reports on the other applications, did not set out suggested conditions. It appears that the conditions were settled by an officer after the committee meeting. An internal inquiry held to investigate the circumstances in which the condition came to be amended failed to establish what had occurred. The officer claimed that he had consulted three members about it, but each of these members denied that he had been consulted. A police investigation is being carried out, but no one has been charged with any offence. It forms no part of the council's case that anything fraudulent occurred, and they say expressly that there is no suggestion of any unlawful conduct on the part of L & P. The same is said on behalf of Councillor Corbett. Mr Lott in his witness statement says that neither he nor L & P were in any way involved in making the 1993 and 1994 applications and that they did not have any discussions or other contact with the Council, councillors and council officers prior to their determination.
38. At the time the 1994 application was considered there was a scheme of delegation providing for the settling of conditions by the responsible officer. The amendment of condition 14 in the 1993 permission would have required the officer to consult with members before settling it in its amended form. The evidence does not establish that this procedure was not followed, and accordingly it cannot be concluded that the condition was not lawfully imposed.
39. Mr Katkowski submits additionally that the policy and other implications of the condition should have been considered by the committee when they were determining the 1997 application, but that they failed to do so and their decision on the 1997 application was on this account unlawful. It seems to me, however, that the committee did have the condition before them (it was set out in the officer's report), and that it is only in the light of subsequent events, in particular the factory outlet centre proposal, that the possible implications have come to be appreciated. I do not think the failure to anticipate that proposal was an omission that rendered the decision unlawful. Ground 3, in my judgment, is not made out.
Estoppel
40. Mr Roots submits that the council are estopped from asserting in these proceedings that any of the decisions to grant planning permission or enter into the section 106 agreement are unlawful. He puts the case on the basis of estoppel by representation, issue estoppel and estoppel by convention. He relies on R v Caradon District Council ex parte Knott (16 December 1999, unreported), in which Sullivan J held that a council that had made a revocation order and a discontinuance order was estopped on all three bases from serving an enforcement notice in respect of the development in relation to which the orders had been made.
41. On estoppel by representation Mr Roots says that the council took a number of actions which might be interpreted as representations that it accepted that the 1997 permission was valid. It accepted as valid the application for approval of reserved matters pursuant to the 1997 permission; it resolved on 9 June 1998 and again on 3 August 1998 and 20 May 1999 not to apply for judicial review of the decision to grant the permission; and at the modification order inquiry it did not contend that any of the decisions now challenged were invalid (except that it was contended, in a point not raised in these proceedings, that condition 14 was invalid and rendered invalid the whole of the 1997 permission). In reliance on these representations, it is said, L & P spent money in bringing the land forward for development and in appearing at the public inquiry.
42. On issue estoppel Mr Roots argues that the modification order was made on the basis that the 1997 permission was not unlawful. The public inquiry proceeded on the basis that the planning permissions were valid (with the exception, again, of the council's contentions on condition 14 of the 1997 permission). The validity of the modification order cannot now be questioned. Therefore, he says, the council is issue estopped.
43. Estoppel by convention, Mr Roots says, arises where parties have acted on the basis of a common assumption of fact, and it operates so as to prevent one of those parties from going back on the assumption where it would be unjust or unfair to do so. The common assumption of fact, he says, was that all the planning permissions were in existence and were capable of implementation. Since the council had conducted itself over the years on this basis it would not be fair or just to allow it, at the point when a claim for compensation for modification of the 1997 permission is to be made, to go back on that assumption. On estoppel by convention, Mr Roots places additional reliance on Hillingdon London Borough Council v Secretary of State for the Environment Transport and the Regions (30 July 1999, unreported), in which Forbes J held that a planning authority, having proceeded on the basis that development was Crown development, while not subject to estoppel by representation or issue estoppel, was estopped by convention from serving an enforcement notice in respect of the development.
44. There can, in my judgment, be no doubt about the basic rule - that, apart from certain specific exceptions, an estoppel cannot operate so as to inhibit a public authority in the exercise of its powers. That is established by Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1961] 2 All ER 46 and Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204. In the latter case, Megaw LJ identified two exceptions to the rule. The first (which, as Megaw LJ said at 219j, may not be estoppel at all) is where a planning authority, acting as such, delegates to its officers power to determine particular questions: then, any decisions made by its officers on those questions cannot be revoked. The second exception (see 221 b-c) is where a planning authority waives a procedural requirement, although whether the authority is estopped is likely to turn on the construction of the statutory provisions setting out the procedure.
45. Megaw LJ's observations were directed specifically to the issue of proprietary estoppel, but they apply in my judgment with equal force to all three kinds of estoppel that Mr Roots seeks to rely upon. Estoppel is a private law concept, affecting the dealings of persons between themselves. As Dyson J put it, accepting the argument of counsel, in R v Leicester City Council ex parte Powergen UK Ltd [2000] JPL 629 at 637:
"The starting point is that the law of town and country planning is public law. It is an imposition in the public interest of restrictions on private rights of ownership of land. The courts should not introduce principles or rules derived from private law unless expressly authorised by Parliament to do so, or it is necessary to give effect to the purpose of the legislation: see per Lord Scarman in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 A.C. 132, [1984] 2 All E.R. 358, at 140H-141C of the former report."
46. Under the Planning Acts a planning authority exercises its powers in the public interest. There are interests beyond those of the planning authority and the applicant that come into play when the exercise of development control or enforcement powers arises. Planning decisions affect, in a variety of ways, the public at large. Where, on the other hand, an authority is dealing with a person on a commercial or contractual basis the private law principle of estoppel may have application. Thus in Co-operative Wholesale Society Ltd v Chester-le-Street District Council [1998] EGCS 76 and London Borough of Hillingdon v ARC Ltd (16 June 2000, unreported) the Court of Appeal accepted that an acquiring authority, having negotiated on compensation outside the limitation period on the basis that limitation did not apply, might be estopped from relying on a limitation defence.
47. In the present case, although the issue of compensation is one that lies exclusively between the council and L & P, the actions, statements and assumptions on the part of the council on which L & P now seek to rely took place or were expressed in the context of the exercise by the council of its public law functions. Its acceptance of the reserved matters applications, its decisions not to apply for judicial review, and its resistance to the proposed modification order were all actions carried out in the performance of its public law functions, and the public at large had an interest in them. The conduct on which Mr Roots seeks to place reliance did not form part of dealings between the council and L & P on the question of compensation. While the possibility of compensation was no doubt in the mind of the council when it conducted itself as it did, the particular statutory powers that it was exercising were ones which affected wider interests than those of L & P. For this reason, in my judgment, no case on estoppel is made out.
48. Apart from this fundamental reason why estoppel has no application, there are other reasons relating to the particular forms of estoppel on which Mr Roots relies. In relation to estoppel by representation, neither a statement of a person's understanding about a legal position nor a statement about what a person intends to do or does not intend to do can found an estoppel: see Territorial & Auxiliary Forces Association of the County of London v Nichols [1949] 1 KB 35 at 50, Kai Nam v Ma Kam Chan [1956] AC 358 at 367; and Jorden v Money (1854) 5 HL Cas 185. It seems to me that each of the representations upon which Mr Roots relies falls into one or other of these categories.
49. For issue estoppel to apply four matters have to be established (see Porter v Secretary of State for Transport (1996) 1 PLR III per Stuart-Smith LJ at 117 B-D):
"1. The issue in question must have been decided by a court or tribunal of competent jurisdiction. ...
2. That the issue must be one which arises between parties who are parties to the decision ...
3. That the issue must have been decided finally and must be of a type to which an issue estoppel can apply.
4. The issue in respect of which the estoppel is said to operate must be the same as that previously decided."
In the present case the issue - whether the permissions and the section 106 agreement should be quashed as being unlawful - was not before the Secretary of State. It was not a matter for him. He had to consider whether three planning permissions should be revoked or modified. He had to treat them as valid for the simple reason that they had not been quashed. In doing so, however, he was not addressing the question that is now before the court.
Are the proceedings statute-barred?
50. Under section 288 of the Town and Country Planning Act 1990 a person aggrieved by a revocation or modification order may apply to the High Court to have the order quashed. An application must be made within six weeks of the date on which the order takes effect. No such challenge was made in this case. Under section 284, except as so provided, such an order "shall not be questioned in any legal proceedings whatsoever." Mr Roots says that if the 1997 planning permission is held to be invalid, by implication the Secretary of State had no jurisdiction to make the modification order, which would also, therefore, be invalid. Consequently, he says, the claimants' challenge to the validity of the planning permission is to question in these proceedings the validity of the modification order.
51. I cannot accept this submission. A planning permission is valid unless it is quashed by order of the court. The Secretary of State made his decision to make the modification order on the basis that the 1997 planning permission was valid. He was right to do so. The permission had been granted and had not been quashed by the court. No challenge could have been made to the Secretary of State's decision on the basis that he had wrongly treated the 1997 permission as being valid. The present proceedings do not call in question the lawfulness of the Secretary of State's decision, since to conclude that the 1997 permission was invalid and to quash it now would not imply any error of law on the Secretary of State's part when he gave his decision. The result of quashing the permission would simply be to render the modification order of no effect. The exclusion in section 284, therefore, does not operate so as to prevent the present applications for judicial review.
Delay and discretion: the principles
52. The decisions which the council seek to challenge were made on 5 January 1994 (the 1993 permission), 8 August 1994 (the 1994 permission), 18 April 1997 (the section 106 agreement) and 13 May 1997 (the 1997 permission). The judicial review application was lodged on 19 April 2000. Thus there was a lapse of time of over 6 years from the earliest decision and nearly 3 years from the most recent. On any view this is a very considerable delay. Section 31(6) of the Supreme Court Act 1981 provides:
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant ... (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
53. In R v Criminal Injuries Board, ex parte A [1998] QB 659, Simon Brown LJ set out the approach to be adopted when applying section 31(6) at the substantive stage. Having considered the different approach required at the leave stage (the subject of section 31(6)(a)), he said (at 676B-677B):
"If, of course, at the substantive hearing it appears that the grant of relief would be likely to cause hardship, prejudice or detriment, then clearly the reasons for the earlier delay may come back into play. But by that stage the applicant will have established his substantive challenge (else he will in any event fail on the merits and all questions of delay will be irrelevant) and the question will be: Should the applicant have to suffer an unlawful decision or should the respondent (or third party) have to suffer the hardship, prejudice or detriment which would result from its being quashed? (I pose the question by reference to a certiorari challenge such as this.) It is into that balance that the earlier `undue delay' must then be put its weight in the scales being affected principally by the following considerations.
(i) The length of the delay in seeking leave.
(ii) The extent to which the applicant was to blame for the undue delay. He may, of course, have been wholly blameless: three months may have passed before be could possibly have discovered any basis for challenge yet the grounds would nevertheless have arisen (see 4(3)) so as to set time running, and `there is undue delay for the purposes of section 31(6) whenever the application for leave to apply is not made promptly and in any event within three months from the relevant date:' see Ex parte Caswell [1990] 2 AC 738.
(iii) The extent, if at all, to which the hardship, prejudice or detriment that would result from the quashing, results also from the delay. It does not, of course, need to - that was precisely the point decided in Furneaux [1994] 2 All E.R. 652. It is, perhaps, unlikely that it will; be period of delay in applying for leave is likely to be far shorter than the subsequent time taken to bring the substantive challenge to court. But if there is a casual connection between the original delay and the hardship, prejudice or detriment (as, for example, when a developer commits himself to implement a planning permission before it is challenged but after it could have been challenged), then the applicant can hardly complain if that delay weighs heavily against him in the final balance.
(iv) Whether the applicant can be shown to have misled the court when he obtained leave. If he did, then again he can hardly complain if it weighs heavily against him. Indeed, if the extension of time is shown to have been obtained in bad faith, then the court in its discretion can properly refuse relief irrespective of whether the respondent makes out a case of hardship, prejudice or detriment.
In short, quite different questions arise with regard to delay depending upon whether the point is raised at the leave stage or at the substantive hearing. At the leave stage (putting section 31(6)(a) aside), the question is whether there is `good reason' for extending time and allowing the substantive application to be made. This involves consideration both of the reasons for the delay and the apparent merits of the challenge; the better the prospects of success, the readier will the court be to extend time even where the delay is unjustifiable, i.e. the merits themselves can contribute to or even supply the `good reason.' At the substantive hearing, however, the question is whether, in a case where there was initially `undue delay' (which may have been wholly justifiable), the merits of the challenge (by now actually established) should be overridden by the hardship, prejudice or detriment that would result from the grant of relief."
54. Further authority as to the correct approach in a case such as the present is to be derived from R v Bassetlaw District Council, ex parte Oxby [1998] PLCR 283. It is this case that forms the foundation of the claimants' case on the present application. There two planning permissions had been granted against officers' advice for residential development on two areas of land on 21 February 1994 and 14 October 1994 respectively. After concern was expressed about a possible association between the landowners' agent and the councillors who had chaired the Planning Sub-Committee meetings at which the permissions had been granted, the council set up an independent inquiry. The report of the inquiry (the "Phelps report") was delivered to the council on 14 March 1996 and was considered by the council at a meeting on 22 March 1996. The report said that there was no evidence that any money or tangible benefits had passed but that the conclusion must be reached that the system was manipulated. It concluded that there must have been a failure on the part of some councillors to disclose an interest on certain occasions. Judicial review proceedings commenced in the name of the leader of the council on 21 May 1996. Apparent bias on the part of the two chairmen was alleged, and the landowners did not contest the case on the merits. Their first argument was that the leader of the council had no locus standi to challenge the council's decision. This contention failed. Hobhouse LJ, giving the substantive judgment, said in the passage to which I have already referred (at 293A) that it was an acceptable approach that the leader of the council should apply for relief. He went on (at 293 A-B and D-E):
"It is a convenient and appropriate course to adopt provided, of course, it is not abused. Such a role of the applicant is sufficient to meet the requirements of the statute and the rules at the stage of application for leave. At the stage of the decision whether or not to grant the remedy asked on the substantive application for judicial review, the nature of the role of the applicant is one of the factors which can, and should in cases such as the present, be taken into account in deciding whether to grant the remedy sought ....
When exercising the discretion whether or not to grant the remedy the court must take into account that in substance, though not in form, it is the council itself that is seeking to have decisions of its own, through one of its own committees, declared void. The questions of delay, alternative remedies and prejudice to interested third parties and the ultimate exercise of the discretion must all be assessed with this factor in mind."
55. The second contention on the part of the landowners was that it would be wrong and a dereliction of duty for the council to seek to have its own consents set aside rather than to exercise its power to revoke them. This contention also was rejected, Hobhouse LJ saying (at 294 D-F):
"In my judgment this is a legitimate and proper attitude for the council to adopt. If they are entitled to have the consents set aside without the payment of compensation, that is what should occur and they should not lend themselves to the payment of inappropriate and unnecessary compensation by reason of exercising their power under section 97.
However this point again serves to focus what this case is about. Is it just that these consents should be vacated on the application of the council without the payment of compensation to the Howcrofts? To categorise the point as one of `alternative remedies' is over-formalistic as is the argument of Mr Mole, QC, for the applicant that the applicant is an individual who as such has no capacity to revoke consents under section 97, which power lies solely with the respondent council. As previously stated, the relevance of the sufficient interest point is to demonstrate that it is in reality the council that is bringing these proceedings and it is the council's interest that is being served thereby."
56. The third contention, again rejected by the Court of Appeal, was that relief should be refused because of the delay in making the application. On this the court agreed with the judge at first instance that it was reasonable for the council to await delivery of the Phelps report before deciding what action to take. The lapse of time was relevant to the need to consider carefully whether the landowners' interests had been prejudiced by the delay. Hobhouse LJ said (at 298B) that, in the exceptional circumstances of the case, the degree to which it could be said that there was delay and, in criticism of the council, that it was undue was only marginal. The critical factor was thus the hardship, prejudice and detriment to the landowners. No point arose on whether the making of the orders asked would be detrimental to good administration. Counsel for the landowners had "somewhat faintly" argued that it would be.
"But in the present case it is the council that is seeking the remedy and it is doing so in what it regards as the needs of good administration - that invalid planning decisions should be declared to be what they in truth are and should be set aside. The delay which has occurred, has not, in respect of the two consents with which we are concerned, invalidated that submission." (At 298 D-E)
57. The landowners did not seek to make out a case on hardship. On prejudice, the landowners said that they had entered into a conditional contract to sell the land, and had incurred some unspecified expense in doing so. About this Hobhouse LJ said (at 299 D-F):
"What they are submitting is that they should be entitled to enjoy the benefits, as yet unrealised, of realising the development value of the land and they will lose that if the planning consents are invalidated.
This submission adds nothing with the basic framework of the case. It is not just that the Howcrofts should enjoy this benefit if they should not have received it in the first place. They have no legitimate grievance on being deprived of what they should never have had."
58. The lord justice rejected a further contention on prejudice relating to a loan that the landowners had made to their agent. He then went on (at 300 D- F):
"Finally, they submit that they will have suffered prejudice because any fresh application that they may now make will have to be made in changed circumstances and may not be successful. This adds little to the basic point. If the case had been that the existence of bias or apparent bias had not had any effect on the original planning applications and that they should on their own merits have been granted when originally applied for, there would be very strong arguments that no order should be made setting aside the consents. The effect of any such order would be to deprive the Howcrofts of planning consents which they were either clearly or probably entitled. But that is not this case. As explained in the Phelps Report and as is apparent from the summarised history which I have recited earlier in this judgment, the only view that one can take is that these planning applications ought never to have been granted."
On the merits the lord justice confined his observations to the matter of bias. His views can be seen in the following two passages (at 301 E-G and 302 B-C):
"The evidence of probable bias on the part of Councillor Hoare and Councillor Crossland has been persuasively established. The history which I have outlined provides a strong inference that that was what occurred. There is further evidence which the council has obtained and which is deposed to on affidavit that there were connections between Mr Coney and the councillors who played a leading part in not only the decisions but in the preparatory steps that led to a favourable consideration of the applications. A close association existed between the relevant persons and the consistency of the conduct of the relevant councillors provides a strong inference that the conduct was at least influenced if not directed by that association...
I appreciate the seriousness of the conclusion that there probably was bias on the part of councillors induced by the agent acting for an applicant for planning permission. But the court has to act upon the evidence that is placed before it and in my judgment the only proper conclusion on the evidence available to us is that there was such bias.
In my judgment the applicant has presented a strong case in support of his application that the two relevant planning consents were rendered invalid by bias or apparent bias and had made out what is necessary for him to establish on an application for the judicial review of the decisions."
59. Finally, taking into account all the factors and submissions, Hobhouse LJ turned to the exercise of discretion. He said (at 302 E - 303A):
"The applicant has established what he needs to establish in order to demonstrate that the two relevant decisions were improperly arrived at and liable to be declared invalid. The counter arguments advanced on behalf of the Howcrofts come down to the critical submission that they ought not to be deprived of the fruits of the consents which they obtained, or certainly not without compensation, and not on the application of the council itself made so long after the event. In my judgment the arguments of the Howcrofts are inadequate to lead to the conclusion that the applicant should not be granted the remedy for which he asks. If it has been clearly established, as it has in this case, that a planning consent was improperly and invalidly granted, then it should, in principle, be declared to be void. It is not appropriate that, other things being equal, the council should be required to pay compensation as a condition of achieving that result. The answer would be different if the planning consent was one which should in any event have properly been granted or where at least it appears that that might be the case. Similar, the position would be different if there had been a material change of position on the part of an affected party on the faith of the consent being valid. Each case would depend upon its own facts and an evaluation of the relevant factors overall."
60. Mr Roots submits that there is a special need for promptness in the case of challenges to planning permissions. In R v North West Leicestershire District Council, ex parte Moses (12 April 2000, unreported) on an application to quash a planning permission granted some years earlier, Simon Brown LJ said:
"Hardship and prejudice apart, to quash the 1994 consent would involve substantial detriment to good administration. As Pill LJ stated in R v Newbury District Council ex parte Chieveley Parish Council [1999] PLCR 51, 67:
`It is important to good administration that, once granted, a permission should not readily be invalidated. As confirmed in the House of Lords, s.31(6) recognises that there is an interest in good administration independent of hardship, or prejudice to the rights of third parties. The court is entitled to look at the interest in good administration independently of those other matters. It is important that citizens know where they stand and how they can order their affairs in the light of the relevant decision ...'
Laws J had made the same point - in the context, be it noted, of alleged non-compliance with an EC Directive - in R v Secretary of State ex parte Greenpeace [1998] Env LR 415, 440:
`... there is ... every detriment to good administration, if the legal system is seen to contemplate and accept challenges of the validity of this licensing process at a stage when licensees have accepted the risks of venture on the faith of what must have seemed a firm decision to grant the licences in question. ... the promotion of this challenge now would generate a severe and undesirable uncertainty within the whole process of the licensing regime, and potentially within other analogous systems."
Delay. The rule that any application for judicial review must be made promptly applies with particular force when seeking to challenge the grant of planning permission by a local authority. As I stated in R v Exeter City Council ex parte J.L. Thomas & Co [1991] 1 QB 471, 484:
`I cannot sufficiently stress the crucial need in cases of this kind for applicants to proceed with the greatest possible urgency, giving moreover to those affected the earliest possible warning of an intention to proceed. In this connection it should be remembered that there is conspicuously absent from the legislation any right to appeal in fact or law from a planning authority's grant of planning permission. And even when a right of challenge is given - the right of statutory application ... to challenge a ministerial decision - it must be exercised within six weeks. Only rarely is it appropriate to seek judicial review of a ... permission [granted by a local planning authority]; rarer still will be the occasions when the court grants relief unless the applicant has proceeded with the greatest possible celerity.'
In R v Ceredigion County Council ex parte McKeown [1998] 2 PLR 1, 2 Laws J cited that passage and continued:
`I would go further. I find it nearly impossible to conceive of a case in which leave to move for judicial review will be granted to attack a planning permission when the application is lodged more than six weeks after the planning permission has been granted. I can see no rhyme or reason in permitting the common law remedy of judicial review to be enjoyed upon a time scale in principle more generous to an applicant than Parliament has seen fit to fix in relation to those who desire to challenge a refusal of permission or its grant subject to conditions. I do not say there cannot be such a case, but, in my judgment, it would be a wholly exceptional one.'"
61. Further explanation for the need to avoid delay in challenging planning decisions was given by Keene J in R v Cotswold District Council, ex parte Barrington Parish Council (1998) 75 P & CR 515 at 524. While a number of these passages cited relate to applications for permission to apply for judicial review, the reasons for avoiding delay in such challenges apply equally, in my judgment, at the substantive stage. I would also add that fairness to the landowner whose planning permission it is sought to quash will in most cases demand that delay in quashing the decision should not deprive him of the opportunity to have his application reconsidered on a proper basis by the authority that has acted unlawfully. That was a point that, understandably, was found to be of no moment on the particular facts of the bias challenge in Bassetlaw, but it is potentially of importance where the challenge is one based (as here) on the failure to take account of material considerations or to follow the proper procedures.
62. In the present case a number of factors require consideration in relation to the issues of delay and discretion. There is the question of the extent to which blame attaches to the applicants; whether to quash the decisions now would cause substantial hardship to L & P or prejudice their rights; and whether there would be prejudice to good administration. There are submissions of Mr Katkowski and Mr Litton that L & P ought not to receive compensation for a permission that they should never have had and that the council tax payers of Restormel should not have to provide money to pay L & P compensation. The position of the claimants also needs to be considered; and since it colours much of what follows, I will take this matter first.
The position of the claimants
63. The nature of the challenge made by Councillor Parkyn is an exceptional one. He applies, with the authority of the council, to quash four of the council's own decisions. Although the application is in his name, it has to be borne in mind that it is in reality, though not in form, an application by the council itself, and thus material to it is the conduct of the council, in relation to each decision, over the years since that decision was given. Mr Katkowski sought to make out that Councillor Parkyn was more virtuous than the council he represents - in that on two occasions, 3 August 1998 and 19 April 1999, he put motions before the full council that application should be made for judicial review. What is material, however, is not that Councillor Parkyn moved these motions but that the council rejected them. It is the conduct of the council itself that matters and not that of its nominee claimant.
64. Councillor Corbett, in contrast to Councillor Parkyn, says that he makes his application on his own behalf. He believes that the council faces a particular difficulty in that it twice resolved not to seek judicial review and argued at the modification order inquiry that its decision to grant planning permission were not so grossly wrong as to justify revocation. He says that he applies as an individual council tax payer in Restormel. Having only become a councillor in May 1999, he was not a party to the conduct of the council which he recognises as presenting them with a difficulty, and he had no more knowledge than as a member of the public of what was going on. His only concern is with the impact that he thinks a compensation payment would have on Restormel council tax payers and accordingly, Mr Litton says on his behalf, he had no grounds for challenging the council's decisions until the modification order was made.
65. The reality of the matter is, it appears, somewhat different. At the meeting of the council on 10 April 2000 at which a report on the possibility of a judicial review application was considered three resolutions were passed. The first was that Councillor Parkyn be authorised to act as the applicant in judicial review proceedings. The second was that the costs of the application be met by the council. The third was in these terms:
"The Chief Executive and Assistant Solicitor, in consultation with the Leader and Deputy Leader of the Council, the Leader of the Liberal Democrat Group and Councillors Budge and Corbett, be authorised to take all action necessary in respect of such proceedings, including the appointment of an external applicant at the Council's expense if Counsel advises this would be a better course of action."
66. In the event, I was told, Councillor Corbett is paying his own costs. The reality, however, is that he is added as a claimant in order to support the council's case and as the result of the resolution that I have quoted. His case is simply part of the council's case and accordingly, if the difficulties which he sees facing the council are real ones, I do not think that the fact of his participation in these proceedings can overcome them.
Blame for delay
67. The facts on which the claimants rely to make out the case on grounds 1 and 2 that the decisions were unlawful were known to or ascertainable by the council at the time the decisions were taken. It cannot claim, as was the case in Bassetlaw, that more evidence was required (as, in Bassetlaw, the Phelps report) before it could establish illegality. Here the facts - what the council did or did not take into account in reaching its decisions, conflicts with development plan policy, and the floorspace of the proposed retail development - were ones which the council was particularly well-placed to know. Before the Secretary of State's decision on the modification order no proceedings were taken on its part to have the decision quashed for two reasons - firstly because it was in favour of the development it had permitted; and secondly because it was advised by counsel that judicial review proceedings would fail. It twice resolved not to take judicial review proceedings.
68. In my judgment judicial review proceedings would indeed have failed. As Bassetlaw makes clear, for a council to seek to have its own decisions quashed is an exceptional course of action, and there must in my view be strong public policy reasons against allowing an authority to succeed in such course of action in the absence of exceptional grounds. As a matter of discretion, the court would be likely to refuse to quash a decision on an application by the authority made simply on the ground that it had omitted to take account of material considerations, even ones of major importance. Something more would be required to justify quashing the decision. In the present case, if an application had been made promptly after any of the decisions in question, it would inevitably have met with strong opposition from L & P, who would no doubt have pointed out, as far as the planning merits were concerned, that there were arguments, including the benefits to the local economy and employment, and the previous commitment to development, why planning permission should be granted; and in these circumstances that the council should not be allowed to have its decision set aside if it was one to which, had it taken account of material matters, it could lawfully have come. If the decision was simply perverse, one to which no reasonable authority could have come, such illegality might have constituted exceptional circumstances justifying the court's intervention. But it is not part of the council's case that any of the decisions were unlawful in this sense; and although the Secretary of State considered them to be grossly wrong it is not suggested that this implies a conclusion that they were Wednesbury unreasonable.
69. As far as ground 2 is concerned, it is hard to see how an application on the council's part to have the decisions quashed could have met with success unless it had had the explicit support of the Secretary of State. The purpose of the 1992 Directions was to provide the Secretary of State with the opportunity to call in an application if he thought it appropriate to do so. There is, however, no evidence that the Secretary of State would have supported an application to quash the decisions on the ground of conflict with the Directions rather than that he would have chosen to follow the course which he has in the event followed, of considering revocation and modification.
70. Thus the likelihood is, in my view, that any application by the council, even if made promptly, would have failed; and the longer any such application was delayed, the less chance it would have had of success. This could perhaps have been advanced by the council as a reason justifying delaying an application until the decision on the modification order, with its compensation implications, had been made. (Of course the position of a person other than the council would have been different in this respect.) But in fact Mr Katkowski's submissions are to the contrary. He says that the council could and should have taken proceedings earlier and that it was only because of wrong advice that they did not.
71. It was in fact only after the Secretary of State's decision on the modification order that the council resolved to alter its stance and seek judicial review. At that point the council became potentially liable to pay compensation, and, it argues, council tax payers will suffer if the decisions are not quashed. Mr Litton submits that Councillor Corbett for his part could not reasonably have been expected to seek judicial review until this potential impact on him had been established. The fact is that all matters relevant to illegality were known or ascertainable at the time of the decision. The modification order, on the other hand, has relevance as far as the merits are concerned; and the stronger the claimants' case in this respect, it seems to me, the less blame should be attached to them in delaying their application until the modification order was made. I consider this later.
Substantial hardship
72. On the basis of Mr Lott's witness statement, Mr Roots points to the following actions taken by L & P in reliance on the planning permissions. In reliance on the 1994 permission, he says, L & P -
(i) acquired the land from the receivers of ML Real Estate Ltd for £450,000;
(ii) incurred costs of about £10,000 in employing agents to find a developer to assist in the development of the land; and
(iii) incurred costs of £640 in securing the amendment of the section 52 agreement.
In reliance on the 1997 permission, L & P -
(iv) allowed the 1994 permission to lapse by not submitting an application for approval of reserved matters;
(v) negotiated and entered into a conditional contract for sale of the site to Castle Court Retail Ltd, and incurred costs of £16,000 in doing so;
(vi) spent about £9,500 in ensuring that roads and sewers were adopted and a restrictive covenant discharged to enable the 1997 permission to be implemented;
(vii) made reserved matters applications under the 1997 permission and incurred costs in doing so;
(viii) incurred costs in borrowing money to finance the company's staff and offices;
(ix) was forced to transfer half share in the freehold of the land to raise additional finance;
(x) incurred costs of £60,000 in appearing at the modification order public inquiry.
73. Mr Katkowski accepts that (x), the costs of the public inquiry, would not have been incurred if the council had successfully moved for judicial review before the inquiry; but he says, in relation to (v), that there is no mention of whether Castle Court paid L & P for the benefit of the conditional contract; and, in relation to (vi), the expenditure on roads and sewers and on getting the restrictive covenant discharged, he says that such expenditure must have added to the value of the land and the works cannot have related to any specific scheme of development because there was no detailed consent.
74. Accepting as he does that L & P may have suffered loss as a result of the council's delay in seeking judicial review, Mr Katkowski draws attention to de Smith's Judicial Review of Administrative Action (5th edition) at paras 20-028 to 20-029, where it is suggested that in certain circumstances it might be appropriate for the court in judicial review proceedings to require the payment of compensation as a condition of its either granting or refusing relief. He argues that this course should be followed here. In my judgment, however, the loss to L & P goes beyond what could reasonably be calculated in the present proceedings. The fact that L & P bought the land in reliance on the 1994 permission is, in my view, a matter of substantial importance. So also is the point that, if in May 1997 the 1997 application had been refused by the council or had been notified to the Secretary of State, instead of being permitted, L & P would have realised that they needed to submit details under the 1994 permission. They had to do this before 8 August 1997 in order to keep that permission alive. I have no reason to believe that they could not or would not have done this. The fact is that L & P conducted their business over a number of years on the basis that the permissions were valid, and whether or not the loss they would suffer in having their entitlement to compensation removed is correctly characterised as substantial hardship, as a detriment to them it must be a matter of considerable weight in the exercise of my discretion.
Good administration
75. The possibility of prejudice to good administration must inevitably fall to be considered where a council is seeking to have one of its own decisions quashed. In the present case different considerations in my view apply in relation to the two grounds on which, as I have held, the decisions of the council were unlawful. Ground 1 is made out because the council failed to take account of material considerations. But, as I have said, on the evidence it would probably still have granted planning permission if it had taken account of all that it should have done. To allow it in these circumstances to have its decisions quashed would, in my judgment, be to harm good administration.
76. As far as ground 2 is concerned, where a court is being asked to quash a decision for failure to comply with a procedural provision it must be a matter of some weight that it is now too late to observe the correct procedure. The person for whose administrative benefit the procedure was provided, the Secretary of State, has not sought to have the decisions quashed so that the correct procedure could be followed. He has chosen to go down the modification route. In these circumstances it would not seem to me to be consistent with good administration that the council should now be able to pray in aid their own failure to observe the requirements of the Directions.
77. Furthermore, as a result of the Secretary of State's decision to proceed by way of modification, substantial administrative time and money has been spent on pursuing this procedure. A public inquiry has been held running into many days. The department itself, the Highways Agency, Cornwall County Council and other bodies and individuals have devoted to this process resources which could no doubt otherwise have been directed elsewhere. To set aside at this stage the decisions on which this procedure was based would, in my view, be inconsistent with good administration.
78. Another aspect of prejudice to good administration arises in relation to the question of what is the right approach to the quashing of planning permissions unlawfully granted. Mr Katkowski places strong reliance on what Hobhouse LJ said in two of the passages from his judgment in Bassetlaw that I have referred to ([1998] PLCR 283 at 298 D-E and 302E-303A). In the first he apparently accepted the council's view "that invalid planning decisions should be declared to be what they are in truth and should be set aside;" and in the second he said: "If it has been clearly established, as it has in this case, that a planning consent was improperly and invalidly granted, then it should, in principle, be declared to be void." Those statements must however, in my judgment, be read in relation to the particular, and unusual, circumstances of that case. Indeed in R v Newbury District Council ex parte Chievely Parish Council, in which Bassetlaw was considered, Hobhouse LJ agreed with the judgment of Pill LJ ([1999] PLCR 51 at 67, which is also quoted above) that: "it is important to good administration that, once granted, a permission should not readily be invalidated." That I take to be the right approach in the absence of something exceptional, like the bias in the Bassetlaw case.
79. It is nevertheless important to bear in mind that in the present case the modification order, by removing the offending part of the unlawful planning permission, has removed also part of the justification for not quashing the permission. The principal good administration reason against quashing a planning permission - that people may have ordered their affairs on the basis that it is valid - has rather less application where the permission itself has been revoked (or where, as here in the case of the 1997 permission, the disputed part has been modified). I am asked to quash the 1997 permission in part, so as to excise from it as unlawful the part that has been removed by the modification order. To do this would affect no one apart from those (L & P and the council) with an interest in the possible payment of compensation. In a sense this is the obverse of a submission that Mr Roots made, that the decisions ought not to be quashed because to do so would serve no planning purpose. It is the fact that quashing would serve no planning purpose that reduces the force of the principal good administration argument against quashing planning permissions.
The merits relating to compensation
80. Echoing the judgment in Bassetlaw Mr Katkowski submits that it would be wrong for L & P to be paid compensation for the modification of a planning permission that it never should have had. It was unlawful for the council to have granted planning permission and it would not be right to allow L & P to profit from this illegality. In putting the matter as he does, he does not, I think, rely, for this argument, on the Secretary of State's conclusion that each of the grants of planning permission was "grossly wrong". He is right not to do so, in my view. He accepts that a conclusion that a permission was grossly wrong does not itself imply that the permission was unlawful. It is at least part of the purpose of the revocation and modification order procedures that a local planning authority and the Secretary of State should be able to take away planning permissions which they think should not on their merits ever have been granted. But it is part of the scheme of the Act that compensation should be paid in these circumstances.
81. The illegalities on which the council relies in the present case are very different from the bias that was found to vitiate the planning permissions in Bassetlaw. Moreover it is not suggested, again in contrast to Bassetlaw, that L & P were in any way associated with or responsible for the illegalities. The faults were purely those of the council. The nature of the illegalities - the failure to take account of material considerations and the failure to refer the applications to the Secretary of State - are not ones from which the conclusion can be drawn that permission would never have been granted if the council had instead acted lawfully. The evidence suggests that, left to themselves and taking into account all that they were required to, the council would still have granted the planning permissions. And I do not think it is possible to conclude that each of the applications, if notified to the Secretary of State, would inevitably have been called in and refused by him, although it appears very likely that this would have happened. Thus the assertion that the permissions were ones which L & P should never have had can only be put on the basis of the planning merits, and this, in the light of the function of the modification order procedure and the compensation provisions to which I have referred, is insufficient.
82. It is the burden on council tax payers that the payment of compensation would impose that the council relies on as the decisive factor on the merits. It has, however, adduced no evidence to show what the size of this burden might be - or indeed to show that there would be any significant burden at all. There is no valuation evidence, as there could have been, as to the value of the land with and without the retail permission. Instead Mr Katkowski asks me to take judicial notice of the fact that land with retail planning permission is very valuable. In my judgment it would be quite wrong to make any assumption on this matter at all. Many factors, about which I have no evidence, could affect the value of the land, and the mere fact that it is to be valued as having planning permission for retail development is wholly insufficient for me to form any conclusion or make any assumption. The fact that L & P hope that compensation will be substantial is of no assistance. The compensation may be very substantial or it may not be.
83. Mr Roots points out that the council have insurance up to £500,000 and he says also that the council have not sought to explain the extent to which compensation might in practice be funded by grant rather than out of the pockets of council tax payers. Both these are points which it is right, in my view, to bear in mind. The highest it can be put on the council's part is that there is an unquantifiable risk that the payment of compensation will impact to some unquantifiable extent on council tax payers.
Conclusion on delay and discretion
84. The overriding considerations are in my judgment these. The delay in applying for judicial review in this case is, as I have said, very substantial indeed - 6 years in the case of the earliest decision, and nearly 3 years in the case of the most recent decision; and all the facts relating to the unlawfulness of the decisions were known or were ascertainable at the time that they were made. That in itself is an argument against relief in view of the function of judicial review to provide an early correction of administrative errors. Nevertheless it must be borne in mind that this is a challenge by the council, and any challenge brought by them before the decision on the modification order would have been so lacking in merit that it would have failed. The modification order raises the prospect of the council having to pay what could be a substantial sum by way of compensation because of the modification of a permission that, like the two earlier permissions, the Secretary of State considered to be grossly wrong. However the risk that compensation will be substantial is unquantifiable, and it is also impossible, on the evidence, to form any assessment of the possible impact on council tax payers. On the other hand L & P have placed reliance on the permissions and the council's favourable approach to their proposals in that they bought the land in reliance on the 1994 permission, forebore to cement that outline permission through the submission of details and have over the years conducted their business on the basis that they had valid permissions to carry out the retail development. It is not suggested that they share any of the blame for the unlawfulness of the permissions. For its part the council not only granted the permissions but also, throughout the period up to and including the modification order inquiry, maintained that they were both lawful and appropriately granted on the merits. They thus refused the invitation to make modification orders and they resisted the Secretary of State's proposal to do so at a public inquiry that consumed a large amount of administrative time. On three occasions, when faced with the prospect of modification orders being made, they resolved not to seek judicial review. Taking into account all these matters I am satisfied that it would not be just to grant relief. The applications are refused.
MR BARTLETT QC: The applications in this case are refused for the reasons set out in the judgment handed down.
MR TAYLOR: My Lord, in those circumstances I would apply for costs, firstly in relation to the matter relating to Mr Parkyn. I ask for costs of this hearing and of the leave application and to be assessed if not agreed. I remind your Lordship of the order that was made in respect of the leave hearing, which can be found at page B in the bundle, by Sullivan J on 19th May, namely that costs were in the application.
MR BARTLETT QC: Yes.
MR TAYLOR: And in respect of Mr Corbett's application I would ask for an award of costs to be assessed if not agreed as well.
MR BARTLETT QC: Yes, Mr Maurici?
MR MAURICI: My Lord, I do not resist an order that Councillor Parkyn pay these costs of the Parkyn judicial review.
MR BARTLETT QC: Thank you, yes. Mr Litton?
MR LITTON: My Lord, I have to confess I am in some difficulty because I was only made aware last night that your Lordship was handing down judgment today. A copy of the judgment, I am afraid, did not get to me until about five minutes before your Lordship came in, therefore I have not had an opportunity to read the contents of that judgment, save for, really, the concluding paragraphs, paragraphs 37 and 38.
MR BARTLETT QC: They are not the concluding paragraphs.
MR LITTON: It is the conclusion on delay and discretion.
MR BARTLETT QC: That should have the number -- it has, I think, in terms of the paragraph numbers now been corrected so that there should be a version available to you under the heading "Conclusion on delay and discretion" as paragraph 84.
MR LITTON: My Lord, yes, and as I understand it, your Lordship has, in essence, refused the applications on the basis of an exercise of discretion, refusing relief.
MR BARTLETT QC: Yes.
MR LITTON: Substantially because of delay that had occurred, particularly in relation, I think, to the council's failure to bring proceedings at an earlier stage. What I do not see in those concluding paragraphs, if I can call them that, my Lord, is any reference to Mr Corbett and how delay has affected him, bearing in mind the submissions I made to your Lordship at the hearing that, in effect, delay is not something that can be levelled at Mr Corbett because his interest only arose once compensation was likely to be paid.
MR BARTLETT QC: No, you will find that, Mr Litton, dealt with, it should be on page 29 under the heading "the position of the claimants". It starts there, and Councillor Corbett is dealt with on the next page, if the paragraphs are correctly numbered they should start "64...
MR LITTON: My Lord, yes. Well, my Lord, I see that you refer to one of the resolutions in paragraph 65.
MR BARTLETT QC: Yes, and the conclusion that I come to in relation to the position of Councillor Corbett is that he was, in effect, added as a claimant in order to support the council's case so that his case should be treated simply as part of the council's case.
MR LITTON: I understand that.
MR BARTLETT QC: You recall the submission that was made and--
MR LITTON: Yes, indeed.
MR BARTLETT QC: And I have acceded to that.
MR LITTON: I understand. I am very grateful, my Lord. On that basis, my Lord, I do not see that I can properly argue that Councillor Corbett can resist an order for costs but I will have a further application in due course to make but unrelated to costs.
MR BARTLETT QC: Yes, yes. Very well. Then in relation to each of the applicants there is an order that they pay the costs of Land and Property Limited and in relation to Councillor Parkyn that he pays Land and Property's costs of the application for permission as well.
MR LITTON: My Lord, can I -- just reflecting, would it, perhaps, be appropriate, my Lord, given your Lordship's conclusions that, in effect, Councillor Parkyn's application was brought in support of the council's application, that the order for costs should make clear that Mr Corbett should only pay those costs which are in addition to the costs incurred by the respondents in defending the claim brought by Mr Parkyn because you will recall, my Lord, that the argument and the time taken up for the hearing was largely that taken by the council through Mr Parkyn and by the respondents in dealing with the assertions made and submissions made by Mr Katkowski. There was significantly less amount of time taken up by the submissions I made on behalf of Mr Corbett and, correspondingly, the response made by the respondents to that.
MR BARTLETT QC: Yes.
MR LITTON: In my submission it would be unjust that he should be lumbered with the full costs of those hearings as well, it should only be those addition costs.
MR BARTLETT QC: Yes, Mr Maurici?
MR MAURICI: All I would say is that the proper order should be that each Councillor meet the costs of the respective applications that they have made and that the quantification of that will be a matter for detailed assessment in due course, but the order that I did not resist was an order that Councillor Parkyn pay the costs incurred with the Parkyn application and I would say that Councillor Corbett should pay the costs incurred by the Corbett application, but the quantification of that would be a matter for detailed assessment as to what costs were incurred in relation to which application.
MR BARTLETT QC: Well, the difficulty is, of course, that there is a very large amount of common ground between them and to the extent that Councillor Corbett was a separate party he, nevertheless, associated himself with the arguments on the council's behalf, so his case is, to that extent, inseparable. So I think an order in those terms might not serve the purpose that you seek. If I were to make an order in the terms that Mr Litton asks, that is to say that Councillor Corbett should pay such costs as are attributable to his application over and above the costs incurred in respect of Councillor Parkyn's application, would you resist that?
MR MAURICI: My Lord, I would not resist that.
MR BARTLETT QC: No, thank you.
MR TAYLOR: My Lord, I think that is a perfectly proper order to make.
MR BARTLETT QC: Very well, I make an order then in those terms.
MR MAURICI: My Lord, I do seek permission to appeal. As your Lordship will be aware your Lordship can grant permission if either I can persuade your Lordship that there are real prospects of success on appeal or if there is some other compelling reason why this matter should go to the Court of Appeal. My Lord, having just given judgment against Councillor Parkyn I do not seek to persuade you that there are real prospects of success, that would be an uphill struggle, but, my Lord, I do say that there are other compelling reasons why this matter should go to the Court of Appeal. My Lord, really, what it comes down to is this case raises a number of important issues about the scope of the Court of Appeal's decision in Oxby and, my Lord, I say that in regard to a number of aspects, first of all your Lordship's judgment does touch on the issue of what grounds of challenge in judicial review can properly be brought as part of an Oxby challenge. Secondly--
MR BARTLETT QC: Wait a minute, the first ground is?
MR MAURICI: Well, your Lordship's judgment touches on what grounds of judicial review can properly be the basis for an Oxby challenge, and your Lordship obviously indicates that the special feature of Oxby was bias. Your Lordship also refers to the fact that a Wednesbury unreasonable challenge might be a proper basis for an Oxby-type challenge but your Lordship indicates against the failure to take into account the material considerations as being a proper basis for an Oxby challenge. So, my Lord, there is an issue here about what grounds could properly be the subject of an Oxby challenge.
Secondly, your Lordship's judgment touches on the issue of the proper timing of an Oxby challenge particularly in relation to whether such a challenge could have been made before modification proceedings or whether it should be made after. And then, my Lord, thirdly, this issue does raise very squarely the proper approach the Court should take to the exercise of discretion in an Oxby-type case where one is dealing with issues of delay and your Lordship's judgment touched on a number of issues relating to the way matters such as prejudice and good administration and hardship caused to third parties which to an extent goes beyond what the Court has considered in Oxby and what I would say, my Lord, is that this judgment will be read alongside Oxby. It does deal with, effectively, a number of the issues that are part of the fall out of Oxby and in those circumstances, my Lord, I would say it is proper for the Court of Appeal to have an opportunity to reconsider or at least to consider, effectively, what the proper limits are in its judgment in Oxby were and for those reasons I say that there are compelling grounds to allow the appeal to the Court of Appeal so that they can give proper consideration to the judgment given in the judgment of Oxby.
MR BARTLETT QC: Yes. Mr Litton, do you have an application?
MR LITTON: My Lord, again, for obvious reasons I am in some difficulties in formulating precise grounds for seeking permission to appeal. I would certainly ally myself with the grounds that Mr Maurici has put forward on behalf of Councillor Parkyn.
My Lord, I must necessarily in order to protect Mr Corbett's position at least ask for permission. I do not think I can properly go beyond the grounds advanced by Mr Maurici if they are sufficient to allow Mr Parkyn to be given permission to appeal, then, in my submission, they are also grounds which justify, in part, Mr Corbett to appeal, all be it that, of course, he does not fall precisely in that ex parte Oxby category because he is not an applicant funded by the council and, in effect, the council. But the issues are so close that, my Lord, it would be inappropriate, in my submission, that he should be precluded from appealing if Mr Parkyn, it is right, is given permission. But at the very least, my Lord, I need to ask for permission so that if I am refused I can properly go to the Court of Appeal.
MR BARTLETT QC: Yes, of course. It does not seem to me to be appropriate that I should grant permission to appeal. The reasons that are raised relate to the interpretation and the application of what I call the Bassetlaw decision and those as treated in my judgment do not appear to me to raise the sort of compelling reasons that would justify the grant of permission.
MR MAURICI: My Lord, there is one further application I would seek to make. Your Lordship has power under CPR 52 rule 4.2(A) to grant an extension of time for filing of the appeal notice to the Court of Appeal even in a situation where your Lordship refuses permission. My Lord, I would ask in this case that the time for filing that notice be extended from the normal 14 days to 28 days principally for three reasons. First of all, my Lord, we are at the tail-end of the vacation period and, obviously, that means a number of people are still away. My Lord, we are dealing, as your Lordship's judgment recognises, with effectively a challenge by the council and obviously the council has decision-making processes which must be gone through in terms of deciding whether to pursue an appeal and to consider, of course, your Lordship's judgment.
My Lord, my third submission would be obviously this is not an uncomplicated matter, your Lordship's judgment runs to 38 pages, and time needs to be given for both leading and junior counsel to advise on the prospects of appeal and for such an application to be made. So my Lord, in those circumstances I would seek an order that the time for filing notice to the Court of Appeal would be extended to 28 days which was the period of time previously allowed under the old rules and I would say in the circumstances of this case that order is justified.
MR BARTLETT QC: Yes, as far as the fact that this is a council is concerned, the time limit is intended to apply as much to councils as to any other body and, as one knows, authorities do or should have in place procedures that enable urgent decisions to be taken.
MR MAURICI: My Lord, although the way the 52(4) rule is phrased is that the first notice must be filed at the Court of Appeal either in 14 days or such other period as the court below directs, so it is not really a strict 14-day rule. It does allow the court a discretion in a case where it thinks it appropriate to extend that time. It is not really a strict 14-day rule and I do say, in the circumstances of this case, given the particular complexity of the case and the length of judgment that it is appropriate to allow 28 days rather than 14.
MR BARTLETT QC: Yes.
MR LITTON: Can I again add that I ally myself to that application? My Lord, in so far as Mr Corbett is concerned there is a particular difficulty, your Lordship is aware that no consideration has yet been given to this judgment. There is no benefit in Corbett's case of leading counsel having either advised or appeared in front of your Lordship. I professionally am in enormous difficulties, I begin a three-week highway enquiry on Tuesday of next week, preparation for which is on-going at the moment and, therefore, it is likely that someone else is going to have to be instructed in relation to any notice of appeal. In this case where matters are complex, clearly they are going to have to have sufficient time to be briefed and be brought up to speed as to the issues so that they can properly formulate that notice of appeal.
MR BARTLETT QC: Yes, Mr Taylor?
MR TAYLOR: My Lord, I would object to the application. I would remind your Lordship that, as is set out in your Lordship's judgment on page 30, the council has already authorised the chief executive and the assistant solicitor and a number of councillors to take all necessary action in respect of these proceedings. There is no need for committees to consider this or for time to be taken for those committees to sit.
This matter came to your Lordship with an expedition order, the reason for that being the continuing prejudice being caused to my clients of not being able to deal with their land and being able to pursue the compensation claim further. There is nothing that my learned friends have raised this morning which is unusual in the nature of litigation. A 14-day rule which is set out, as my learned friend drew your Lordship's attention to, is the normal rule and there is nothing that they have raised that I would suggest justifies an extension of time.
MR BARTLETT QC: Yes. I am not prepared to extend the 14 days.
MR TAYLOR: My Lord, there is just one further matter, I should have raised it earlier. My instructing solicitor has just reminded me of a point. I think there might have been a slight slip in your Lordship's judgment in one respect, it appears on the last page, on page 38, about four lines from the bottom, your Lordship indicates that on three occasions when faced with the prospect of occupation orders the council resolved not to seek judicial review. I believe that should read two, but as I say I am slightly uncertain about that comparing it with paragraph 63 on page 30.
MR BARTLETT QC: Well, I think the factual position, as I understand it, is there were two occasions on which Councillor Parkyn moved that judicial review proceedings should be taken, but that there were three occasions in total on which the council actually resolved.
MR TAYLOR: In that case I apologise for wasting your Lordship's time.
MR BARTLETT QC: I believe that you should find all three dates set out elsewhere in the judgment. I cannot, at the moment, place my finger on it. But that is the explanation of the three. If it is wrong, it is wrong, but I believe it to be right.
MR TAYLOR: Thank you, my Lord.
MR BARTLETT QC: Thank you.
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